DIAZ v. THE STATE OF NEW YORK, #2003-010-002, Claim No. 106323

Synopsis

Inmate's claim seeking damages for his fall in a shower stall while incarcerated
at Sing Sing Correction Facility is dismissed due to his untimely service of the
claim upon the attorney general's office.

Case Information

UID:

2003-010-002

Claimant(s):

SEVERINO DIAZ

Claimant short
name:

DIAZ

Footnote (claimant name)
:

Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name)
:

Third-party
claimant(s):

Third-party
defendant(s):

Claim number(s):

106323

Motion number(s):

Cross-motion
number(s):

Judge:

Terry Jane Ruderman

Claimant's
attorney:

SEVERINO DIAZPro Se

Defendant's
attorney:

HON. ELIOT SPITZERAttorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General

Third-party defendant's
attorney:

Signature date:

January 29, 2003

City:

White Plains

Comments:

Official citation:

Appellate results:

See also (multicaptioned
case)

Decision

Claimant seeks damages for injuries he allegedly sustained on July 15, 2001
during his incarceration at Sing Sing Correctional Facility when he allegedly
fell in the shower and broke his jaw. Claimant testified that the ceramic tiles
in the shower were slippery and that he fell because there are no mats or safety
bars.

A claim to recover damages for personal injuries must be filed within 90 days
of accrual unless

claimant serves a notice of intention to file a claim upon the attorney general
within such time (Court of Claims Act, § 10[3]). "Service by certified
mail, return receipt requested, upon the attorney general shall not be complete
until the claim or notice of intention is received in the office of the
attorney general" (emphasis added)(Court of Claims Act, § 11). Claimant's
notice of intention was not received by the attorney general until October 19,
2001, which was beyond the 90 day period. Defendant raised, with sufficient
particularity in its answer, the affirmative defense of lack of jurisdiction due
to claimant's failure to timely serve the notice of intention (Answer, ¶
11).

The requirements of the Court of Claims Act §§ 10 and 11 are
jurisdictional in nature and require strict compliance (

seeFinnerty v New York State Thruway Auth., 75 NY2d
721).

Accordingly, defendant's motion to dismiss, upon which decision was reserved,
is now GRANTED.